On Trial: No, A Judge Did Not Issue A Stay Of Trump's Immigration Ban
The press enjoys a certain liberty and license with evidence and court precedents that a lawyer cannot so easily employ within the confines of the law. So, what does the evidence of precedent say about the recent flurry of legal actions over Trump's
Friday
immigration orders?
A few liberal federal judges
on Saturday
night issued a limited order precluding deportations of those individuals already present in the country who had already been approved for visas. This was misunderstood as a "stay" of Trump's executive order on immigration. It is not. In fact, Trump's order says nothing about deportations, the individuals who filed suit were not even detained at the time of the court orders (raising serious questions about the court's propriety to act as it did under "habeas corpus"), and the courts repeatedly acknowledged no impact of the court order on Trump's plan (noting no "injury" to Trump's position by the order).
Trump's order is not a deportation order of those present here. Trump's order is a ban on future would-be migrants from a select set of foreign countries identified as terror hot spots (the latter by a list from Obama and Congress). Trump's order was not an ex post facto order on those already present in the country on already-approved visas. The court’s orders limit their impact to precluding "removals" only. The court’s actions say nothing about denied entry, denial of visas, denials of transit, or denials of refugee status. The court order does not cover the primary focus of Trump's immigration order: those from terror-affected regions unapproved for travel to the country and not present here prior to Trump's order.
This is the difference between an immigration control, visa application, and refugee application order of people not yet here (Trump's order focus), as opposed to a deportation order of those already here (court's focus). Congress and Trump enjoy carte blanche plenary authority of the former; habeas law limits the latter. The order also did not prevent detaining people at entry points; it only prevented deportation of those approved for entry prior to Trump's order. An order limiting forced emigration is not an order about future immigration.
Just as Trump issued no "muslim ban", no court has issued a "stay" of his entire, actual immigration order. That suit still awaits judgment, and nothing in the courts' orders suggests that suit has any better chance now; if anything, the various courts' refusal to extend the order to such future migrants with unapproved entry suggests strongly the CAIR suit will lose,
.
